Going Through a Separation? 3 Crucial Ways to Protect Yourself

Category: Family Law

Every expecting mum has, at some point, pondered what their parental rights are.

From birth certificates to breastfeeding, vaccinations, and returning to work, there’s a lot to think about – especially when you’re dealing with all the wondrous* physical transformations that pregnancy brings!

In this blog, we answer the top four questions new mums ask our family lawyers:

Should I get the father’s name on the birth certificate if we split up while I’m pregnant?

Can I breastfeed anywhere?

What happens if I decide not to vaccinate my baby?

Are part-time or casual employees entitled to time off work when they have a baby?

1. Should I get the father’s name on the birth certificate if we split up while I’m pregnant?

It is your right to submit a birth certificate with just your name on it, but you should be aware that this don’t mean the father will never be recognised on the certificate.

The child’s father can also submit his own application to be recognised on the certificate. If this happens, the registry has specialists who will contact both parties to verify the information they’ve received, before making a decision or advising you to get legal advice (depending on your circumstances).

The registrar can make decisions about certain things at their own discretion (for instance when the baby’s last name is disputed), and for more serious matters your issue will be referred to the courts, which can compel you to get the father’s name on the certificate.

If the father insists on having his name on the certificate but you dispute his paternity, the Family Law Court can order him to take a DNA test. If the test proves that he is the father, the court may make an order that forces the registry to include his name on the certificate, and he will automatically be granted all of the rights and responsibilities of fatherhood (providing he poses no risk to the child).

It’s also worth noting that in some cases the court has the power to determine paternity without a DNA test.

In general, unless your child’s father poses an unacceptable risk to their safety, the court has an obligation to encourage a relationship between them. So, unless you have a very good reason to do so, excluding the father from the birth certificate usually isn’t worth it.

2. Can I breastfeed anywhere?

Yes! In Australia, mothers have the right to breastfeed their children anywhere they are comfortable doing so.

The next time someone tells you (directly or indirectly) not to breastfeed in public, tell them to look up the Sex Discrimination Act 1984!

3. What happens if I decide not to vaccinate my baby?

There are two main consequences that parents who don’t vaccinate their kids need to be aware of:

Reduced financial benefits: Families that don’t vaccinate kids under the age of 20 aren’t eligible to receive the Family Tax Benefit Part A end of year supplement, the Child Care Benefit and the Child Care Rebate.*

No jab no play: Child care facilities are allowed to refuse to enrol unvaccinated children. There are exceptions for kids who are undergoing a vaccination catch-up program or who have a valid medical reason, but simply objecting to vaccinations is not considered a good enough reason to not vaccinate your children. Also, if you decide to enrol your unvaccinated kids at a childcare centre anyway, you won’t get your money back when they are rejected.

*These two payments will be replaced by the new Child Care Subsidy from July 2, 2018.

4. Are part-time or casual employees entitled to time off work when they have a baby?

Full-time, part-time, and casual employees (who have a proper arrangement of regular hours and have been working for their employer for 12 months) are all entitled to take time off when they have a baby.

Once your leave is over, you are also entitled to go back to the same position that you had before you left – although in reality this is often easier said than done.

Everyone’s situation is different, so to find out more about your unique entitlements, check out the Fair Work maternity & parental leave fact sheets.

At Phoenix Law, our understanding solicitors are happy to answer your questions about family law and to work with you to resolve disputes quickly and as painlessly as possible. To get in touch, just dial 07 3607 3274, email info@phoenix-law.com.au or fill in our online contact form.

Hi,

I have two kids (six and seven) that I always spend time with over the Easter holidays. My ex and I don’t have this in writing though. When it comes to payments and visits, we just have a verbal arrangement that we’ve stuck to since we split up four years ago.

This year, however, I’m behind on my child support payments because I lost my job just before Christmas. My ex is now threatening to refuse to let me see the kids until my child support is up-to-date. Is she legally allowed to do this?

Daniel, 27, Beenleigh

Dear Daniel,

Unfortunately, your story is one that our family lawyers hear every day.

First of all, you should know that child support and custody matters are two separate issues. They are administered under different legislation and more importantly, the family law courts do not deal with the child support matters at all.

Child Support

As far as child support is concerned, if there is no binding Child Support Agreement in place, then the amount of child support required can change as the payer’s circumstances change (such as you losing a job).

You should contact the Child Support Agency and have the amount of the child support you need to pay assessed – this may come back as zero payable if you have no income. Doing this will ensure that you have discharged your obligation to pay child support.

It’s also worth mentioning that it is obviously not in your children’s best interests to have to get by on a lower income than they’re accustomed to. While finding employment can be very difficult around this time of year, any job you can secure will not only help your children now, but it will aid you later down the track if you do have to go to court.

Parenting Arrangements

Without having a little bit more information about your specific situation (there may be other extenuating circumstances you haven’t included in your message) we can’t tell you whether your ex can or should withhold your access to your children.

When it comes to parenting arrangements in general, there are a few things that any separated parent living in Queensland (including you) should know:

Generally, if there are no orders in place, an ex cannot refuse to let the other parent see the children unless they have reason to believe the other parent won’t give the children back or, by allowing access they would be putting the children at risk of harm. Examples of harm include exposure to drug use, domestic violence or sexual abuse.

If there is no risk of harm and another very compelling reason to withhold access is not provided, the Family Court will not look favourably upon a parent who denies the other parent access to their children. The Family Court understands that children need a relationship with both parents wherever possible.

Nobody can break the law while trying to see their kids. This includes trespassing on the other parent’s property to collect them, taking the kids overseas without the other parent’s consent, or making threats of physical violence against the other parent.

The Next Steps

While a verbal agreement may have worked for you and your ex in the past, you have many years before your children are adults and this will certainly not be the last disagreement you have.

It’s a good idea to make formal arrangements now before the problems of raising teenagers hit.

In addition to sorting out your child support obligations, you may want to consider:

Drafting a parenting plan together: These are not enforceable by law, but the court will consider them if you later apply for orders.

Applying for a parenting order: This is legally enforceable, and will usually cover where the child lives, who the child spends time and communicates with, as well as other issues including education and medical treatment.

At the end of the day, family law disputes have the best outcomes when parties can consciously put aside their dislike or even hatred of the other parties involved, and instead focus on what is best for the children.

We hope this works out for everyone involved.

At Phoenix Law, we have solicitors that can help you achieve an outcome that will protect your children and uphold your rights as a parent. To get in touch with one of our approachable family lawyers, just dial 07 3607 3274, email info@phoenix-law.com.au or fill in our online contact form.

Are you wondering what all the fuss is about when it comes to marriage equality?

If you, like many Australians, think same-sex couples had all the rights they needed before the Marriage Amendment Bill 2017 was passed last year, you’ll be surprised to know just how much this legislation has positively impacted the everyday lives of the LGBTQI community!

1. Australia now recognises overseas same-sex marriages

Same-sex couples who are married in their country of origin no longer have to prove they are in a “de facto relationship” when it comes to applying for certain visas, permanent residency or citizenship here in Australia. Instead of providing several proofs of living situations and shared expenses and waiting to see if their relationship is valid in the eyes of the law, now showing a marriage certificate will suffice.

And, on the flip-side, overseas same-sex couples who wish to elope in Australia can now do so, which is good news for our booming wedding industry.

2. IVF parenting rights just got a lot simpler

Before marriage equality, only heterosexual married couples could use IVF to have a child and then automatically have the non-biological partner legally recognised as the child’s parent.

Now, both members of same-sex married couples will be automatically granted parent status when conceiving through IVF, without needing to prove the existence of a de facto relationship between them.

3. With marriage equality, wills and rights in the event of death are now equal

Married same-sex couples now have the same rights as married heterosexual couples when it comes to the death of their partner:

Their name can be recorded on the death certificate, which makes arranging funerals, life insurance, superannuation and welfare payments easier.

If there is no will, the still living partner will have more of a say over what happens to the deceased’s assets, without the need to prove their relationship status.

4. People can transition without divorcing

Before the most recent amendments to the Marriage Act, married folks who changed genders couldn’t update their birth certificates without first divorcing.

Now, people can transition while staying married and those who identify as neither male nor female will also be able to marry.

Are you flirting with the idea of an overseas elopement, but aren’t sure if you’ll need to remarry when you get back home? Or perhaps you’re already married and need to know if your overseas union is recognised in Australia? If so, this blog is for you!

According to the Marriage Act of 1961, if your marriage was valid under the laws of the country in which you were initially married, it will usually be recognised by the Australian government, and you won’t have to remarry.

To have your marriage recognised, you’ll need to show your original marriage certificate, a certified copy, or a “record of marriage issued by a competent authority in a foreign country” to your local births, deaths and marriages registry.

Reasons Your Marriage Won’t Be Recognised

Sometimes an overseas marriage won’t be valid in Australia, either because it isn’t a proper legal contract or it doesn’t fit the Australian government’s definition of marriage.

Your overseas marriage may be invalid if:

One of the parties wasn’t of marriageable age in Australia: Both parties must be at least 18 years old unless a court has approved a marriage where one party is aged between 16 and 18 years old.

One of the parties was married to someone else at the time of marriage: This is known as bigamy, and in Australia it is an offence punishable by up to 5 years imprisonment.

There is no consent: Marriages that are obtained by duress or fraud, because of a mistaken identity, with a party that didn’t understand the nature of the agreement they were entering into or with a party that was mentally incapable of consenting are all invalid in Australia.

Does Marrying an Australian Automatically Give Me Rights to Live There?

Marriage doesn’t mean you automatically can live in Australia – you still need to be approved for a valid partner visa.

To find out more about family or migration law, contact Phoenix Law & Associates on 07 3607 3274 for an obligation-free confidential discussion, or email us at info@phoenix-law.com.au.

February may be the month for romance, but when it comes to relationship law, love cannot afford to be blind.

In this blog, we debunk the top three legal myths our family lawyers hear, and explain why believing them can cost you more than you’d think!

Myth #1: Consent is the only law I need to worry about when it comes to sex.

When it comes to who you can and can’t have sex with, and how you go about doing so, there are a number of laws you need to know about:

Age: In Queensland, it is illegal to conduct sexual activity with anyone under 16 years of age. These ages vary state to state, however, which is important to know if you plan on going on a weekend getaway with your love this Valentines Day.

Sexting: While the age of consent is 16, it’s still illegal to possess sexual images of anyone under 18 – something that all teenagers need to be aware of in the smartphone era!

STI Disclosure: If you knowingly expose a sexual partner to an STI you may be held accountable under the Public Health Act. Furthermore, if the person contracts a serious condition like HIV from you, you could be charged with grievous bodily harm or face civil action if you knew you had the condition.

Myth #2: When you’ve been living together as a couple for two years, there is a relationship law that says you get half of the other person’s stuff if you break up.

The laws surrounding a de facto “divorce” are a lot more complicated than this common urban legend implies.

What you may be entitled to when your relationship ends will depend on many factors including:

• What assets/property/money you brought into the relationship to begin with Whether you made any “significant contributions” to an asset (e.g. your labour spent renovating a house)

• How long you were together

• If you have children together

De facto separations rarely end in an even 50/50 split, which is why it’s a good idea to get legal advice.

Myth #3: Your will remains a valid legal document even after you’ve married.

Most couples don’t realise that once they officially tie the knot, any wills that either party had in place beforehand become invalid.

If you don’t want the majority of your estate going to your spouse, you need to update your will.

This law is particularly relevant for anyone who has children from a previous relationship.

For more information about how to protect yourself in a relationship, or to find out how family law affects you or your children, get in touch with our friendly team today by dialling 3607 3282 emailing info@phoenix-law.com.au or filling out our simple online contact form.

If you’ve ever had a serious, long-term relationship, you’ll know how deeply intertwined lives can become – which is why a separation often makes for a difficult, painful, and volatile experience.Like any situation, though, you can take steps to mitigate your hardship.What follows is a guide to solving the pressing, but easily avoided problems that can arise in any separation.

1. Contact Your Bank

A breakup almost inevitably means financial stress.Joint bank accounts, joint credit cards, joint home loans.All these things can compound your suffering at a time when former partners can do things that are otherwise totally out of character, like withdrawing large sums of money from a joint account or using the credit card recklessly.

The best thing to do is to contact your financial institution and inform them of your situation.This way, they’ll alert you to any suspicious behaviour by your ex-partner.

2. Change Your Passwords

If the breakup was not on good terms, you should consider changing the passwords to your online banking and social media accounts.A spurned partner can be vindictive, so this is a critical step towards ensuring your peace of mind.

3. Update Wills & Other Legal Documents

If you have a will, it is vital that you update it as soon as possible after a separation.Otherwise, your former partner is still entitled to whatever property you have left them under your old will.If you’ve had a will drafted by a law firm, let them know that you will need to make changes to it.You won’t necessarily need an entirely new will – your firm may simply delete clauses and insert new ones, so this needn’t be a costly endeavour.

The other major document that you may need to revoke is an Enduring Power of Attorney (EPOA).If you and your ex-partner are each other’s Attorneys, then you will need to tell the law firm that drafted the documents that you need to revoke them.Do this ASAP, because while the EPOA is still in place, your partner can sign legally binding documents on your behalf.

There is a myriad of different concerns to bear in mind during a separation, but these are a few of the most important.If you’re unsure about your next step is, seek legal advice – it can be the difference between a relatively painless breakup and a whirlwind of heartache.